Citation NR: 9724406
Decision Date: 07/15/97 Archive Date: 07/25/97
DOCKET NO. 94-25 117 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to an increased rating for residuals of a
fracture of the right elbow, currently evaluated as 20
percent disabling.
2. Entitlement to an increased rating for residuals of a
fracture of the right radius and ulna, currently evaluated as
10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. J. Alibrando, Counsel
INTRODUCTION
The veteran served on active duty from August 1978 to June
1992.
This appeal comes before the Board of Veterans’ Appeals
(Board) from a July 1993 rating decision in which the
Department of Veterans Affairs (VA) Regional Office (RO)
granted service connection for residuals of a fracture of the
right elbow, evaluated as 20 percent disabling, residuals of
a fracture of the right femur, evaluated as 10 percent
disabling, residuals of a fracture of the distal right radius
and ulna, evaluated as 10 percent disabling, residuals of a
fracture of the right mandible, evaluated as noncompensable,
and for scar of the right knee, evaluated as noncompensable.
Service connection was denied for a fracture of the right
patella, recovered, with no residuals. In August 1993, the
veteran submitted a notice of disagreement with the July 1993
rating action. By letter dated in November 1993, the RO
notified the veteran that the notice of disagreement was
invalid as he failed to specify the determinations with which
he disagreed. In January 1994, the veteran submitted a
notice of disagreement indicating that he disagreed with the
ratings pertaining to his right upper extremity. The
statement of the case was issued in February 1994. A
substantive appeal was received in April 1994. In November
1996, the case was remanded by the Board for further
development.
The Board notes that the veteran requested a hearing at the
local VA office before a member of the Board on the April
1994 substantive appeal. By letter dated in April 1996, the
RO notified the veteran that the requested hearing was
scheduled for May 21, 1996 and it was noted by the RO that
the veteran failed to report for the hearing.
REMAND
The veteran contends that the service connected residuals
of fractures of the right elbow and right distal radius
and ulna are more severe than currently evaluated. He
also asserts that he is right handed and that the each
disability should be rated according the criteria
pertaining to the major extremity. In June 1997, the
veteran’s representative noted that correspondence sent to
the veteran pursuant to the Board’s November 1996 remand
was sent to an address different from the address most
recently listed by the veteran on the July 1996 VA Form
21-22. The representative asked that case be remanded to
the RO for completion of the development using the
veteran’s current address as shown in the claims file.
In November 1996, the Board remanded the case for an
additional VA orthopedic examination for purposes of having
the examiner verify the veteran’s dominant hand and for
making clinical findings as required by the United States
Court of Veterans Appeal in DeLuca v. Brown, 8 Vet.App. 202
(1995). The RO was also requested to contact the veteran and
ask that he furnish information regarding treatment of the
service connected disabilities since 1992.
By letter in November 1996, the RO requested the treatment
information from the veteran. A computerized memorandum
dated in January 1997 shows that the veteran failed to report
for a VA examination scheduled December 24, 1996. By letter
dated in January 1997, the RO notified that the veteran that
he had failed to report for that examination and asked him to
indicate whether he would be willing to report for an
examination if rescheduled. Both of the letters were sent to
the veteran at an address on Greg Dr. in Goldsboro, North
Carolina. However, nothing in the claims file from the
veteran shows this as his address. Although the letters to
the veteran have not been returned as undeliverable, the
Board concludes that due process considerations require that
the RO make another attempt to contact the veteran at his
last known correct address of record.
As noted in the previous remand, the VA has a duty to assist
the veteran in the development of facts pertinent to his
claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §
3.103(a) (1996). The Court has held that fulfillment of the
statutory duty to assist includes conducting a thorough and
contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one. Green v. Derwinski, 1 Vet.App. 121 (1991). In DeLuca,
the Court held that ratings based on limitation of motion do
not subsume 38 C.F.R. § 4.40 (1995) or 38 C.F.R. § 4.45
(1995). It was specified that the medical examiner should be
asked to determine whether the joint in question exhibited
weakened movement, excess fatigability or incoordination and
that the determinations, if feasible, should be expressed in
terms of the degree of additional range-of-motion loss due to
any weakened movement , excess fatigability or
incoordination. It was also held that the provisions of
38 C.F.R. § 4.14 (1995) (avoidance of pyramiding) do not
forbid consideration of a higher rating based on greater
limitation of motion due to pain on use, including during
flare-ups.
Accordingly, the case is REMANDED to the RO for the following:
1. The RO should contact the veteran at
his last known address, or a current
mailing address if the RO has received
notice of a change of address from the
veteran, and request him to furnish the
names and addresses of all health care
providers from whom he has received
treatment for the service connected
residuals of the fracture of the right
elbow and right distal radius and ulna
since July 1992. (The RO should make a
specific memo as to what established the
veteran’s address.) Where appropriate,
consent forms for the release to the VA
of any private medical records should be
obtained from the veteran. Thereafter,
the RO should obtain copies of all
identified treatment records of the
veteran which are not currently in the
file, including both private and VA
records and associate them with the
claims folder. Even if the veteran does
not respond to the foregoing inquiry the
RO should obtain all VA treatment records
of the veteran which are not currently in
the file and add them to the file.
2. After the above mentioned records
have been obtained, the veteran should be
afforded a special VA orthopedic
examination to determine the nature and
extent of the service connected residuals
of the fracture of the right elbow and
right distal radius and ulna. Such tests
as the examiner deems necessary should be
performed, including range of motion
studies. The claims folder must be made
available to, and reviewed by, the
examining physician prior to the
examination so that pertinent aspects of
the veteran’s medical history may be
reviewed. The examiner should comment
upon the effects of the veteran’s service
connected disabilities on ordinary
activity and on how the disabilities
impair him functionally. The examiner
should determine whether the veteran is
left or right handed and set forth the
basis for that determination. The
examiner should be asked to determine
whether the right elbow, distal radius
and ulna exhibit weakened movement,
excess fatigability, or incoordination
attributable to the service connected
disability; and, if feasible, these
determinations should be expressed in
terms of the degree of additional range
of motion loss or favorable or
unfavorable ankylosis due to any weakened
movement, excess fatigability, or
incoordination. Finally, the examiner
should be asked to express an opinion on
whether pain could significantly limit
functional ability during flare-ups or
when the right upper extremity is used
repeatedly over a period of time. This
determination should also, if feasible,
be portrayed in terms of the degree of
additional range of motion loss or
favorable or unfavorable ankylosis due to
pain on use or during flare-ups.
3. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, including if
the requested examination does not
include all test reports, special studies
or opinions requested, appropriate
corrective action is to be implemented.
4. When the above developments have been
completed, the case should be reviewed by
the RO. If the decision remains adverse
to the appellant, he and his
representative should be afforded a
supplemental statement of the case and
afforded a reasonable opportunity to
respond.
Thereafter, subject to current appellate procedures, the
case should be returned to the Board for further appellate
consideration. The veteran need take no action until he
is further informed. No inference should be drawn
regarding the final disposition of the claim as a result
of this action.
E. M. KRENZER
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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